National Labor Relations Board v. Jarka Corp.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,v.JARKA CORPORATION OF PHILADELPHIA AND LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, RESPONDENTS.

Author: Hastie

Before MARIS, MCLAUGHLIN and HASTIE, Circuit Judges.

HASTIE, C.J.: The National Labor Relations Board has petitioned this Court, in accordance with Section 10(e) of the National Labor Relations Act (hereinafter called the Act), 49 Stat. 449, et seq. (1935), as amended, 29 U.S.C. § 151 et seq. (1946 ed. Supp. IV), to enforce an order issued by the Board on separate charges and consolidated complaints against the Jarka Corporation of Philadelphia (hereinafter called Jarka) and Local 1291, International Longshoremen's Association (hereinafter called the union). On the basis of the evidence adduced at hearings before its trial examiner, the Board concluded that the respondents had committed certain unfair labor practices, Jarka by enforcing in violation of Section 8(a)(3), and the union by causing Jarka and other stevedoring companies to enforce in violation of Sections 8(b)(1)(A) and 8(b)(2), a policy of giving preference to union members in good standing in the employment of longshore workers. It found also that the respondents had thus discriminated against two individuals in particular, one a nonunion employee and the other a union member delinquent in the payment of his union dues, Jarka by refusing, and the union by causing Jarka to refuse, to give them employment. The Board's order seeks to have respondents cease and desist from these unfair labor practices and take various affirmative steps in compliance therewith. The decision and order of the Board are reported at 94 N.L.R.B. 320.

As respondent here, Jarka has sought only an amendment to the enforcement order for purposes of clarification. However, the Board and Jarka have now reached a mutually satisfactory understanding based upon the Board's clarifying interpretation of its own order and no issue with respect to Jarka is left for us to determine.All that now remains in issue is whether the Board's findings in respect to the union were supported by substantial evidence on the record considered as a whole and whether these findings warranted the ultimate conclusion that the union had committed the unfair labor practices specified within the meaning of the Act.

Certain facts found by the Board are not disputed. Jarka, a pennsylvania corporation, is one of several companies engaged in the business of stevedoring at the Port of Philadelphia, and the respondent union is the recognized collective bargaining agent for the longshore workers. Men are obtained for work each day by the companies at "shape-ups", a system of hiring whereby working crews are assembled and employed on a job-to-job basis. Pursuant to this arrangement, the particular needs of a company are communicated to the union which, together with the company, shares the responsibility for posting that information at various places within the waterfront area. A company will then employ a hiring boss, both for the purpose of recruiting a specific crew from among those applicants who appear at a predesignated "shape-up" point, and for the purpose of acting thereafter as crew foreman until the work is completed.

Controverted are the Board's findings in accordance with the findings of its trial examiner that individuals Walker and Richardson were refused employment by Jarka's hiring bosses at and because of requests from elected officers of the respondent union known as union delegates. In the case of Walker, this conclusion was based solely on the testimony of Walker, himself, who was contradicted by Varlack, a union delegate. In the case of Richardson, the finding was based on the testimony of hiring boss Gibbs as well as Richardson, himself, who were contradicted by union delegate Kavalauskas. The trial examiner and the Board believed the complainants and Gibbs. Thus, the findings of fact made by the Board in respect to acts of discrimination by the union against these two individuals depend primarily upon judgment of credibility and should not be disturbed.

More generally, there is evidence that union delegates regularly appeared at "shapeups" and there requested the hiring foreman to grant preference to union members. The union's assistant financial secretary admitted that union delegates "enforced" the "rule" that union men were to be hired first, and that nonunion men were permitted to finish out work for which hired "when our men are not available". In addition, three regular hiring bosses for Jarka, who were also members of the union, admitted that they generally hired union men first in accordance with the union rule. On the basis of this evidence, the findings of specific instances of union discrimination against individuals Walker and Richardson, and a consideration of the record as a whole, the Board found that union delegates followed the practice of "securing" preferential hiring for union men in good standing. Our independent examination of the record as a whole satisfies us that there was substantial evidence to support this finding.

We are confronted, finally, with the question whether the actions comprehended by the foregoing findings constituted unfair labor practices within the meaning of Sections 8(b)(1)(A) and 8(b)(2) of the Act. The pertinent language of the Act is as follows:

"Section 8. (a) It shall be an unfair labor practice for an employer -

...

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...

...

(b) It shall be an unfair labor practice for a labor organization or its agents -

(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 7 ...

(2) to cause or attempt to cause an employer to discriminate against an employee in violation ...

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